Friday, July 10, 2015

What remains of the Armed Career Criminal Act

From David Freund:

While Johnson v. United States (previously blogged about here
and here)
struck the residual clause of the Armed Career Criminal Act (ACCA) as
unconstitutionally vague, the enhancement is not dead yet. It still
applies if a client has three or more prior convictions that qualify as serious
drug offenses; or violent felonies or both because they had as an element the use, attempted use, or
threatened use of physical force against the person of another, or were for an offense enumerated
in the statute -- burglary, arson, extortion, or involves use of explosives.

Determining whether a defendant has a conviction for an enumerated offense, however, does not end the inquiry into whether the conviction qualifies as a violent
felony. If the statute is overly broad, that is, it proscribes conduct beyond
the “generic” definition of an enumerated offense, then such a conviction may not
always qualify as a violent felony. When a statute is overbroad, the court must
use the categorical approach to determine if the conviction qualifies as a
violent felony.

For over 25 years, defense counsel have been challenging whether prior
offenses are properly counted as ACCA predicates. The Supreme Court jumped into
the definitional dogfight in 1990 with Taylor
v. United States, where
it defined burglary as used in the violent felony definition of the ACCA. Taylor held that “burglary” as used in
the ACCA meant a “generic” burglary, that is:

any crime, regardless of its
exact definition or label, having the basic elements of unlawful or
unprivileged entry into, or remaining in, a building or structure, with intent
to commit a crime.

To
make this determination, courts must use the “categorical approach,” which “requires
the trial court to look only to the fact of conviction and the statutory
definition of the prior offense. The Court clarified that the categorical
approach,

[M]ay permit the sentencing
court to go beyond the mere fact of conviction in a narrow range of cases where
a jury was actually required to find all the elements of generic burglary. For
example, in a State whose burglary statutes include entry of an automobile as well
as a building, if the indictment or information and jury instructions show that
the defendant was charged only with a burglary of a building, and that the jury
necessarily had to find an entry of a building to convict, then the Government
should be allowed to use the conviction for enhancement.

We therefore hold that an
offense constitutes “burglary” for purposes of a § 924(e) sentence enhancement
if either its statutory definition substantially corresponds to “generic”
burglary, or the charging paper and jury instructions actually required the
jury to find all the elements of generic burglary in order to convict the
defendant.

Taylor did not end the fight about which prior
convictions could be counted as ACCA predicates. What about offenses for which
the statute is overly broad and there are no jury instructions? In 2007 the Supreme Court followed up Taylor with Shephard
v. United States.

Shepard recognized the “modified” categorical
approach, which allows
a court to consider additional information, including the charging document to which the
defendant pled, a written plea agreement, transcript of the plea colloquy, or
any explicit factual finding by the trial judge to which the defendant assented. However, a sentencing court remained
prohibited from considering the underlying facts of the conviction. When using
the modified categorical approach, a court may only use the permissible
documents to determine under what part of a divisible statute the defendant was
convicted.

This
long, and probably overly complicated introduction, brings us to the Tenth
Circuits most recent decision applying the categorical/modified categorical
approach, United
States v. Ridens.
After pleading guilty to being a felon in possession of a firearm, the trial
court determined Mr. Ridens was an Armed Career Criminal and sentenced him to 188
months. He appealed the inclusion of a burglary conviction as an ACCA predicate, arguing there was insufficient proof that it was a qualifying burglary.

More specifically, Mr. Ridens challenged the
inclusion as a violent felony a 1981 Kansas burglary conviction. In 1981 the
Kansas burglary statute was not categorically a violent felony. Mr. Ridens pled guilty in the challenged
burglary case, so the Court examined “whether the ‘plea of guilty to burglary
defined by a nongeneric statute necessarily admitted [the] elements of the generic
offense.’” The charging document to which Mr. Ridens plead charged, in relevant
part, that he “unlawfully, willfully, feloniously, knowingly and without
authority enter[ed] into a building, to-wit: a residence . . . with the intent
to commit a theft or a felony therein.” The Tenth Circuit identified the issue
thusly:

Complications
may arise when burglary is defined differently and more broadly than that
generic definition—that is, the definition is “divisible.” These definitions
“set[] out one or more elements of the offense in the alternative—for example
stating that burglary involves entry into a building or an automobile.” At the
time of Ridens’s conviction, Kansas defined burglary as “knowingly and without
authority entering into or remaining within any building, mobile home, tent or
other structure, or any motor vehicle, aircraft, watercraft, railroad car or
other means of conveyance of persons or property, with intent to commit a
felony therein.” Accordingly, this burglary conviction “cannot as a categorical
matter provide a basis for enhancement under the ACCA.” (internal citations
omitted).

The
Circuit determined it must use the modified categorical approach to evaluate
whether Mr. Ridens prior conviction qualified as a violent felony. While the
Kansas burglary statute at the time was overly broad, Mr. Ridens was charged by
Information with, and pleaded guilty to “unlawfully, willfully, feloniously,
knowingly and without authority enter[ed] into a building, to-wit: a residence
. . . with the intent to commit a theft or a felony therein.” The journal described Ridens as
having pleaded guilty to the crime “as charged in . . . the Information,” id.,
further indicates Ridens “necessarily admitted” that he entered a building with
the requisite criminal intent.

Because that Riden’s conviction
was based on a generically limited charging document”—i.e., one that
“narrowed the charges to the generic limit,” -- and, because Ridens pleaded guilty
to a charging document that described the elements of a generic burglary
conviction, he committed a qualifying violent felony.